<a href="/news/2015/mar/05/vmware-lawsuit/">Christoph Hellwig's lawsuit against VMware

  in Germany over alleged GPL violations on Linux</a> as a service to the

  Free Software community, and in particular, the copyleft community.  Conservancy

  realizes this lawsuit generates many questions and interest

  from the community.  Legal counsel (both Conservancy's own, and

  Christoph's lawyer, Till Jaeger) correctly advise us to limit our public

  comments regarding specific details of the case while litigation remains

  pending in court.  Nevertheless, Conservancy, as a

  non-profit charity serving the public good, seeks to be as transparent as

  possible.  If you have additional questions you'd like to see answered

  here, please <a href="mailto:info@sfconservancy.org">email

  &lt;info@sfconservancy.org&gt;</a>, but understand that we may often need

  to answer: <q>We cannot comment on this while litigation is pending</q>.</p>

<dl>

  <dt>Who is the Plaintiff in the lawsuit?</dt>

  <dd>Christoph is one of most active developers of the Linux kernel. He has

   contributed 279.653 lines of code to the latest Linux 3.19 kernel, and

   thus ranks 20th amongst the 1,340 developers involved in that release.

   Christoph also ranks 4th among those who have reviewed third-party source

   code, tirelessly corrected and commented on other developers'

   contributions.</dd>

  <dd>Not currently.  Court proceedings are not public by default in Germany

  (unlike in the USA).  Conservancy will continue to update this FAQ with

  information that Conservancy knows about the case.  We would all also

  welcome an agreement with VMware whereby both sides would agree to publish

  all Court documents. </dd>

  <dt>Who's funding this lawsuit?</dt>

  <dd>Conservancy has engaged in a grant agreement with Christoph Hellwig for

  the purposes of pursuing this specific legal action in Germany.

  Conservancy is funding this legal action specifically as part of

  Conservancy's program activity in

  its <a href="/linux-compliance/about.html">GPL Compliance

  Project for Linux Developers</a>.</dd>

  <dt>Is this the Great Test Case of Combined / Derivative Works?</dt>

  <dd>This case is specifically regarding a combined work that VMware

  allegedly created by combining their own code (“vmkernel”) with

  portions of Linux's code, which was licensed only under GPLv2.  As such,

  this, to our knowledge, marks the first time an enforcement case is

  exclusively focused on this type of legal question relating to GPL.

  However, there are so many different ways to make combined and/or

 <p>Conservancy in parallel informed Christoph fully of the details of the

   Linux violation on Christoph's copyrights, and based on Conservancy's

   findings, Christoph began his own investigation and confirmed

   Conservancy's compliance conclusions.  Christoph then began his own

   enforcement effort with legal representation from Till Jaeger.  Christoph has

   been unable to achieve compliance, either, through his negotiations in

   2014.  VMware's last offer was a proposal for a settlement agreement that VMware would

   only provide if Christoph signed an NDA, and Christoph chose (quite

   reasonably) not to sign an NDA merely to look at the settlement offer.</p>

 <p>Thus, this lawsuit comes after years of negotiations by Conservancy to

 achieve compliance — negotiations that ended in an outright refusal by

 VMware's lawyers to comply.  Those events were then followed by a year of

   work by Christoph and Till to achieve compliance in a separate action.</p>

 <p>Simply put, Conservancy and Christoph fully exhausted every possible

 non-litigation strategy and tactic to convince VMware to do the right thing

 before filing this litigation.</p>

  </dd>    

  <dt>Can you explain further how VMware incorporated code from Linux into

  their kernel?</dt>

    understand it.  The diagram compares the technical architecture of a full,

    running Linux kernel with a full, running VMware kernel:

    <p>

      <a href="/linux-compliance/linux-vs-vmkernel_en.png">

    <img class="inside-faq" alt="[Diagram of Linux and VMware running kernels]" src="/linux-compliance/linux-vs-vmkernel_en_scaled.png" /></a>

    </p>

    <p>If you want to download the diagram, it's available

    in <a href="/linux-compliance/linux-vs-vmkernel_en.svg">SVG

    (English)</a>, <a href="/linux-compliance/linux-vs-vmkernel_en.png">PNG

    (English)</a>, <a href="/linux-compliance/linux-vs-vmkernel_de.svg">SVG

    (German)</a>, and <a href="/linux-compliance/linux-vs-vmkernel_de.png">PNG

    (German)</a>.</p>

  </dd>

  <dt>Can you explain further in words (rather than a picture) about the central

  component in ESXi that the lawsuit alleges violates the GPL?</dt>

<dd>

    <p>The GPL violation at issue involves VMware's ESXi product.

    Conservancy independently reviewed ESXi 5.5 and its incomplete

      <acronym title="complete, corresponding source">CCS</acronym>

    release as part of our GPL enforcement efforts described above.</p>

    <p>Conservancy's preliminary investigation indicated that the operating